Full Judgment Text
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CASE NO.:
Appeal (civil) 686 of 2005
PETITIONER:
Union of India & Anr
RESPONDENT:
Bashirbhai R.Khiliji
DATE OF JUDGMENT: 16/05/2007
BENCH:
A.K.MATHUR & TARUN CHATTERJEE
JUDGMENT:
J U D G M E N T
A.K. MATHUR,
1. This appeal is directed against the order passed by the
Division Bench of the High Court of Gujarat at Ahmedabad whereby
the Division Bench of the High Court has set aside the order passed
by the Additional Deputy Inspector General of Police, Central
Reserve Police Force, ( for short, CRPF), Group Centre, Gujarat,
Gandhi Nagar dated 26.4.1996 and held that the respondent is
entitled to invalid pension which may be calculated in accordance
with rules and paid to him within three months along with interest at
the rate of 9 per cent from 1.9.1991.
2. Brief facts which are necessary for disposal of this appeal
are that the respondent herein was selected and appointed as Armed
Constable in the Central Reserve Police Force. He was posted at
Amritsar (Punjab) in the Anti-terrorist squad. Thereafter, he was
posted at Srinagar (Jammu & Kashmir) for the protection of citizens
against terrorists. While on duty due to heavy snowfall in Srinagar he
suffered from Pyrogenic meningitis and neurosensory deafness
(bilateral). Consequently, he was referred to S.M.N.S.Hospital and
was admitted there from 19.1.1990 to 14.2.1990 and thereafter at the
Base Hospital -1, New Delhi and All India Institute of Medical
Sciences, New Delhi from 17.3.1990 to 16.4.1990 for investigation
and treatment. He was diagnosed as a patient of ’ Pyrogenic
Meningitis with B.I. Sensonery Deafness’. Despite medical treatment
at various hospital, the respondent could not be cured and he was
declared unfit for active duty. His case was referred for consideration
whether he could do alternative job. But there also he could not
secure one as he was found invalid. Finally he was invalidated from
service on 1.7.1991 (F.N.) vide office order dated 27.6.1991 passed
by the Group Commander, CRPF, Gandhinagar. The respondent
requested for invalid pension but that was rejected on the ground that
he had not completed the qualifying service of ten years. But he has
been given service gratuity of Rs.4,140/- apart from a recurring
payment of Rs.1000/- per month from Risk Fund for life vide order
dated 12.12.1991. The respondent filed S.C.A.No. 12432 of 1994
before the High Court of Gujarat praying for invalid pension. But by
order dated 28.2.1996 the High Court directed that the
representation of the respondent for separate pension be considered
in accordance with rules. It was also observed that the respondent’s
case for separate entitlement to invalid pension was distinct from the
entitlement from the risk fund and if the entitlement from the risk fund
was the same as invalid pension, reasoned order be passed in that
respect. Pursuant to that direction, respondent’s representation was
considered and was rejected by order dated 26.4.1996. The
respondent also made a representation with regard to recovery of
Rs.22231/- . This was rejected on the ground that the respondent
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had been overpaid with respect to the period he remained under
treatment and medical examination. The respondent thus
approached the High Court again by filing the present writ petition
and claimed for invalid pension. This was opposed by the appellants
that the respondent is not entitled to invalid pension as per Central
Civil Services (Pension) Rules, 1972, since he had not completed
ten years of service. The Division Bench after considering Rule 38
which deals with the invalid pension took the view that since the
respondent’s invalidity was 100 per cent, therefore he was entitled to
invalid pension and the condition of ten years of qualifying service
could not be invoked so as to deny the respondent the invalid
pension. The Division Bench further held that since the respondent
while on duty has suffered the permanent disability, therefore,
whatever excess payment made to him should not be recovered.
Aggrieved against this impugned order the present appeal was filed
by the appellants.
3. We have heard learned counsel for the parties and
perused the records. There is no two opinion in the matter the
respondent while serving at height has suffered 100 per cent
invalidity. He has already been granted Rs.1000/- per month out of
the risk fund which is specially reserved for such disability. But so far
as the question of granting invalid pension is concerned, that
cannot be considered though it may be harsh, as per the scheme of
the Pension Rules. The respondent being a constable in the Central
Reserve Police Force is governed by the Central Reserve Police
Force Act, 1949 and Central Reserve Police Force Rules, 1955
(hereinafter to be referred to as ’the Rules of 1955’.). According to
Rule 42 of the Rules of 1955, the respondent is governed by the
Central Civil Services (Pension) Rules, 1972. The Pension Rules of
1972 contemplates various types of pensions in Chapter V. Rule 35
deals with superannuation pension. Rule 36 deals with retiring
pension. Rule 37 deals with pension on absorption in or under a
Corporation, Company or Body. Rule 38 which deals with invalid
pension reads as under :
" 38. Invalid pension
(1) Invalid pension may be
granted if a Government servant retires from the
service on account of any bodily or mental
infirmity which permanently incapacitates him for
the service.
(2) A Government servant applying for
an invalid pension shall submit a medical
certificate of incapacity from the following
medical authority, namely:-
(a) a Medical Board in
the case of a Gazetted Government servant
and of a non-Gazetted Government servant
whose pay, as defined in Rule 9 (21) of the
Fundamental Rules, exceeds Two
thousand and two hundred rupees per
mensem;
(b) Civil Surgeon or a
District Medical Officer or Medical Officer
of equivalent status in other cases.
NOTE 1.- No medical certificate of incapacity for
service may be granted unless the applicant
produces a letter to show that the Head of his Office
or Department is aware of the intention of the
applicant to appear before the Medical Authority. The
medical authority shall also be supplied b the Head
of the Office or Department in which the applicant is
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employed with a statement of what appears from
official records to be the age of the applicant. If a
Service Book is being maintained for the applicant,
the age recorded therein should be reported.
NOTE 2.- A lady doctor shall be included as a
member of the Medical Board when a woman
candidate is to be examined.
(3) The form of the Medical Certificate to be
granted by the Medical Authority specified in
sub-rule (2) shall be as in Form 23.
(4) Where the Medical Authority referred to
in sub-rule (2) has declared a Government
servant for further service of less laborious
character than that which he had been doing, he
should, provided he is willing to be so employed,
be employed on lower post and if there be no
means of employing him even on a lower post, he
may be admitted to invalid pension."
Rule 39 deals with compensation pension. Rule 40 deals with
compulsory retirement pension. Rule 41 deals with compassionate
allowance. These are various kinds of pensions admissible to
Government servants. Chapter VII deals with regulation of amounts
of pensions. This chapter deals with how the amount to be
determined after putting in qualifying service. Rule 48 deals with
retirement on completion of 30 years’ qualifying service. Rule 48A
deals with retirement on completion of 20 years’ qualifying service.
Rule 49 which is relevant for our purpose, reads as under :
" 49. Amount of Pension
(1) In the case of a Government servant
retiring in accordance with the provisions of these
rules before completing qualifying service of ten
years, the amount of service gratuity shall be
calculated at the rate of half month’s emoluments for
every completed six monthly period of qualifying
service.
(2) (a) In the case of a
Government servant retiring in accordance
with the provisions of these rules after
completing qualifying service of not les than
thirty-three years, the amount of pension shall
be calculated at fifty per cent of average
emoluments, subject to a maximum of four
thousand and five hundred rupees per
mensem.
(b) In the case of a
Government servant retiring in accordance
with the provisions of these rules before
completing qualifying service of thirty-three
years, but after completing qualifying service
of ten years, the amount of pension shall be
proportionate to the amount of pension
admissible under Clause (a) and in no case
the amount of pension shall be less than
Rupees three hundred and seventy-five per
mensem.
) notwithstanding
anything contained in Clause (a) and Clause
(b), the amount of invalid pension shall not be
less than the amount of family pension
admissible under sub-rule (2) of Rule 54.
(3) In calculating the length of qualifying
service, fraction of a year equal to three months and
above shall be treated as a completed one half- year
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and reckoned as qualifying service.
(4) The amount of pension finally
determined under Clause () or Clause (b) of sub-rule,
shall be expressed in whole rupees and where the
pension contains a fraction of a rupee it shall be
rounded off to the next higher rupee.
(5) & (6) Deleted."
We are presently concerned with two provisions of the Rules
i.e. Rule 38 and Rule 49. Rule 38, as reproduced above,
contemplates the invalid pension. The procedure has been
mentioned therein i.e. in case an incumbent retires from service on
account of bodily or mental infirmity which permanently
incapacitated him for the service, then a medical certificate of
incapacity shall be given by the concerned authorities and in
particular form No.23 the same may be applied before the competent
authority. It is true that the qualifying service is not mentioned in Rule
38 but Rule 49 which deals with the amount of pension stipulates
that a Government servant retiring in accordance with the provisions
of these Rules before completing qualifying service of ten years, the
amount of service gratuity shall be calculated at the rate of half
month’s emoluments for every completed six monthly period of
qualifying service. Therefore, the minimum qualifying service of ten
years is mentioned in Rule 49. The word ’qualifying service’ has
been defined in Rule 2(q) of the Rules which reads as under :
" (q) ’Qualifying Service’ means service
rendered while on duty or otherwise which shall be
taken into account for the purpose of pensions and
gratuities admissible under these rules;"
Therefore, the minimum qualifying service which is required for the
pension as mentioned in Rule 49, is ten years. The qualifying
service has been explained in various memos issued by the
Government of India from time to time. But Rule 49 read with Rule
38 makes it clear that qualifying service of pension is ten years and
therefore, gratuity is determined after completion of qualifying service
of ten years. Therefore, for grant of any kind of pension one has to
put in the minimum of ten years of qualifying service. The respondent
in the present case, does not have the minimum qualifying service.
Therefore, the authorities declined to grant him the invalid pension.
But the amount of gratuity has been determined and the same was
paid to him.
4. We feel that this is little harsh that an incumbent while
discharging his onerous duties became completely deaf. Therefore,
the respondent should have been adequately compensated for that.
A sum of Rs.1000/- per month has already been granted to him from
the Risk Fund which is specially reserved for such contingency. So
far as the pension is concerned, as he has not put in ten years of
minimum qualifying service, it would not be admissible to him.
However, a sum of Rs.22,231/- which has been paid to him during
the medical treatment, shall not be recovered from him. Hence, in
view of our above discussion, we allow this appeal and set aside the
order of the Division Bench of the Gujarat High Court. There would be
no order as to costs.
5. However, before parting with this case we feel that since
the respondent while discharging his duties has become invalid to
serve anywhere on account of impairment of both of his ears,
therefore, in fitness of things, at least something should be given to
him for survival and we direct that a sum of Rupees one lakh be
given to him ex gratia. This amount in question be released by the
appellants to the respondent within a period of two months from the
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date of receipt of a copy of this judgment.